(COURT OF APPEAL)*

ARABI AHMED ABU SARA ………………..Applicant

and

EL SHELKH MOHD. HAMID …………….Respondent

(AC-REV-113,1956)

Revision

Principles

·  Rent control-meaning of notice to quit under section ii (c) of the Rent Restriction Ordinance-under taking by tenants during previous litigation does not constitute such notice in subsequent suit

In an action by a landlord at Omdurman for recovery of a shop for the reason that the landlord wanted it for his own use, the tenant contested the suit on the ground that the claim was not genuine and that the landlord really wanted to evict him because he resisted a claim for payment for more than the standard rent. The suit was subsequently dismissed on plaintiff’s application and the District Judge entered a note that the parties had come to an agreement for defendant to vacate the shop within seven months. The defendant again having refused to vacate the plaintiff brought this action and the District Judge — noting the previous agreement granted him relief. The tenant applied to the High Court for Revision, but the High Court confirmed the decision  of the District Judge treating the agreement in question as a valid notice to quit under section 11 (c)  bf the Rent Restriction Ordinance 1953**
 
(*)Court M.I. El Nur and R.C. Soni, J.J.
(**) Section ii  In any suit by a landlord for the recovery of possession of any premises the Court shall not grant such relief unless
(c)  the tenant has given notice to quit and in consequence of such notice the landlord has contracted to sell or let the premises or has taken any other steps as a result of which he would in the opinion of the Court be seriously prejudiced if he could not obtain possession.
Held:    that the agreement in question was not a notice to quit but a simple agreement entered into during thependency of litigation and could afford no ground under the Ordinance for an action of eviction under section ii (c). The decree of the High Court revised.

Judgment

The facts are fully set out in the judgment of Soni J

Advocate:             Fawzi el Tom ….…………. for Applicant

                        The Respondent appeared in Person

R.C. Soni, J.: - This is an application for revision by the Defendant of an order dated 8.7.56 of a learned Judge of the High Court dismissing the Defendant’s revision petition to him from a judgment and decree of the trial Court in Omdurman dated 14.2.56 in CS/1514/55

The Plaintiff is the landlord of a number of shops in Omdurman, one of which is rented by the Defendant. The Defendant has been his tenant of this for a large number of years. It is in evidence that the Defendant started paying 50 P.T. as monthly rent for this. This was raised to 80 P.T. later. Then in 1950 it was raised to LE.2 per month on the Plaintiff’s demand. Higher rent was again demanded by the Plaintiff, and the rent was raised to LE.3 Then came the Rent Restriction Ordinance. On the Defendant not agreeing to pay rent more than was allowed by the Ordinance, the rent was reduced to LE. 2. But on this reduction, Plaintiff brought a suit in the Omdurrnan Court No. 1442/54 demanding. ejectment of the Plaintiff from the premises on the plea that he wanted the shop for his own use. The rent had been decreased in August. This suit was that he was really paying LE.7 as rent and the Plaintiff’s case was not genuine. This was on  13.12.54. The suit was adjourned for trial on 17.1.55. On that day the suit was dismissed on Plaintiff’s application, the Court noting that the parties had come to an agreement as to the vacation of the shop. By that agreement the Plaintiff and the Defendant agreed that the shop would be vacated seven months afterwards, which would mean on 17th August 1955 The shop not having been vacated the Plaintiff brought the present action on 5.11.55. asking that the agreement be enforced and praying for a decree for ejectment against the Defendant. When,

.L.J.R.—8

 however, the parties were examined by the Trial Court on 12.12.55, the Plaintiff based his claim for ejectment on the ground that he required the shop for his own personal use. The Defendant denied the claim. The issues framed were -

1. Does the Plaintiff require the premises for his personal use ?

Onus on Plaintiff

2. If yes, is he entitled to recover possession?

       Onus on Plaintiff’

Evidence was led on these two issues. Plaintiff finished his evidence on 30.1.55. Defendant began his evidence on 13.2.56. After the close of evidence by the Defendant, parties were asked by the Court to address it at once on the case. When arguments were being heard. the agreement of 17.1.55 in the previous suit was brought to notice, and the trial Judge after hearing arguments, framed new issues and at once proceeded to judgment. The new issues were

1. Did Defendant undertake to vacate the shop in dispute in seven months from 17.1.55 ?

Onus on Plaintiff

2. If yes, was Defendant bound by the undertaking ?

Onus on Plaintiff

3. If yes, is Plaintiff entitled to recover possession and if so from what date ?

The old issues were completely disregarded. No opportunity was given to lead evidence or make further submission on the new issues and the trial Judge next day, the 14th  Feb. 1955 wrote his judgment and passed his decree directing the Defendant to vacate the shop on 17th  August 1956. The trial Judge held that the Defendant was bound by the undertaking which had been proved.

From this decree a revision was taken to a learned Judge of the High Court, who held that the undertaking was in the nature of a notice by the Defendant to quit, and therefore enforceable under the S. ii (c) of the Rent Restriction Ordinance. It was complained to the learned Judge of the High Court that the trial Judge though  he may be entitled to frame new issues, could not at once proceed to judgment  on the new issues. The learned Judge of the High Court held that no prejudice  was caused by the trial Judge’s procedure, and that the law under

S.ii (c) of the Ordinance was applicable to the case, as the  undertaking was in the opinion of the Judge, in reality a notice by the Defendant to quit. On these grounds he dismissed the Defendant’s petition for revision.

A revision has been taken by the Defendant  to this Court from this order  and it is complained that the procedure adopted by the trial

Judge was prejudicial, and the trial Judge’s reasons were wrong, and also that the reasoning of the learned   Judge of the High Court was wrong, and that S. ii (c) had no application.

We are of the opinion that the complaint is well founded. It is an essential principle of law that a party has a right to lead evidence and to be heard on the new issues. The Defendant may not have wanted to lead evidence, but he could certainly argue before the trial Judge that the undertaking was of no effect in law. The learned Judge of the High Court probably realized  that the Ordinance did not recognize as ground of eviction an agreement between the parties to vacate the premises in the manner mentioned in the undertaking, and he there fore felt it necessary to say that it was covered by clause (c) of S. ii. In our opinion it cannot possibly be said that the Defendant had given any notice to quit. It was a pure agreement entered into during the pendencyof a litigation. Such an agreement is not a notice, and affords no ground under the Ordinance for ejectment of the tenant. It may well he that the Plaintiff realized that this was so, and though he made it the basis of his claim for ejectment in his complaint to the Court, he changed his ground when he was examined by the Court and the issues as originally framed referred only to the ground of Plaintiff wanting the premises for his own use. The evidence led on that essential issue by both parties has been examined by us, as it was not dealt with by the trial Court. We find as stated in the beginning of this judgment) that the Defendant had been the tenant of the shop in dispute for a quarter of a century when he began paying 50 P. T. as rent. The Defendant paid  80 P.T. later. In 1950 he was paying LE.2 on Plaintiff’s demand. Later higher rent was demanded by the Plaintiff and the Defendant was paying LE.3 On the coming in force of the Rent Restriction Ordinance the Defendant insisted on paying whatever the Ordinance allowed and the rent had to be reduced to LE.2. Practically immediately thereafter — two months afterwards —— a suit for ejectment  was brought on the plea that the Plaintiff wanted the premises for himself. That clearly shows the Plaintiff was merely wanting more rent, and his plea of personal necessity was mala fides. We have gone through the evidence led on both sides and have heard the Plaintiff

at very great length. He is a cattle merchant and has not felt the need of any of his eight shops in Omdurman before. He comes toOmdurman for short periods during the year. He had been quite satisfied when he was getting higher rent. When the Ordinance came into force and the Defendant refused to be coerced to pay the higher rent, the Plaintiff reduced it to bring it within the limits allowed by the law, but at the same time began his coercive tactics. We arc not satisfied with the genuineness of his need of the shop for his personal use. That need appeared to be satisfied when higher rent was available.

We, therefore, set aside the decree and judgments of the Courts below, and dismiss the Plaintiff’s suit.

There will be no order- as to costs

. M.I. El  Nur, J. — I concur

(Revision allowed)